Both of the parliamentary committees dealing with expropriation without compensation (EWC) bills have breached their constitutional obligations to ‘facilitate public participation’ in the legislative process.
As regards the Expropriation Bill of 2020 (the Expropriation Bill) with its wide-ranging EWC provisions, at least 90 000 written submissions were sent in by concerned South Africans before the 28 February 2021 deadline for public comment.
Given the number of these documents, the portfolio committee on public works and infrastructure (the portfolio committee) is most unlikely to have read them all in the past two weeks. It is nevertheless forging ahead with arranging for oral submissions on the Expropriation Bill to be made to it next week, on 24 and 25 March.
The long-established principle is that individuals and organisations that have asked in their written submissions for the opportunity to make oral presentations should be invited to do so. But the portfolio committee cannot comply with this principle because it has no accurate way of knowing how many requests for oral presentations have been made.
Undeterred, it is rushing headlong towards the oral presentation stage. Twenty-one individuals and organisations have been invited to make oral presentations to it next week. But no one knows how many others also asked for the opportunity to make oral submissions and have been unfairly and arbitrarily denied this.
The portfolio committee is thus pursuing a deeply flawed public consultation process. In doing so, it is ignoring its constitutional obligation to ‘facilitate public participation’ in the legislative process. It is also overlooking a number of Constitutional Court judgments which emphasise that a tick-box attitude to public consultation cannot suffice.
As the Constitutional Court has stressed, citizens must be given ‘a meaningful opportunity to be heard in the making of laws that will govern them’. They must also be given ‘a reasonable opportunity to know about the issues and to have an adequate say’.
Adequate time for consultation must thus be provided. In the Land Access case in 2016, the court stated that ‘a truncated timeline’ for the adoption of legislation may itself be ‘inherently unreasonable’. If the period allowed is too short, then ‘it is simply impossible…to afford the public a meaningful opportunity to participate’.
In the Doctors for Life case in 2006, the court noted that legislative timetables cannot be allowed to trump constitutional rights. Said the court: ‘The timetable must be subordinated to the rights guaranteed in the Constitution, and not the rights to the timetable.’
Constitutional obligations
In pushing ahead with the oral presentation stage without adequately considering the 90 000 written documents – or properly processing all requests for oral submissions – the portfolio committee is ignoring both its constitutional obligations and the rulings of the country’s highest court.
Inviting and then largely discounting public comments is also part of a wider pattern of citizen abuse. This pattern has been particularly acute on the EWC issue right from the start.
In 2018 Parliament’s Constitutional Review Committee (CRC) was tasked with advising the legislature on whether Section 25 of the Constitution (the property clause) should be amended to allow for EWC. Having invited public submissions on the issue, the CRC then discounted almost all of the roughly 450 000 valid documents it had received – two thirds of which were opposed to an EWC constitutional amendment.
Instead of doing a proper job, the CRC looked only at a small sample (about 400) of these documents and claimed this was enough. Given its determination from the start to recommend an EWC constitutional amendment, the CRC simply declined to engage with almost all of the contrary evidence and argument it had invited the public to submit. This was a particularly egregious example of citizen abuse.
In 2019 an Ad Hoc Committee was established by Parliament to draw up a constitutional amendment bill in line with the CRC’s recommendation. Having drafted a bill (formally, the Draft Constitution Eighteenth Amendment Bill of 2020) and invited public comment on this text, the committee received no fewer than 204 000 written submissions by its deadline of February 2020.
The Covid-19 lockdown then intervened. And when the Ad Hoc Committee finally resumed its work, it delegated the task of reading and considering all these submissions to parliamentary staff, who have been charged with compiling a brief summary of all these documents.
This is not nearly good enough. As opposition parties have pointed out, the MPs serving on legislative committees are the public’s elected representatives. They are thus obliged to engage directly with the submissions they invite people to send in. They cannot shirk their responsibility for the proper performance of this task or palm it off on other functionaries. For them to attempt to do so is yet another example of citizen abuse.
As regards oral presentations, the Ad Hoc Committee decided earlier this year to exclude all such submissions, as hearing them would interfere with its March 2021 deadline for the adoption of the constitutional amendment bill. It has since bowed to pressure and agreed to take oral submissions. However, like the portfolio committee dealing with the Expropriation Bill, the Ad Hoc Committee does not know how many individuals and organisations previously asked to make oral presentations and so need to be included.
Arbitrary timetable
Parliamentary staff have been asked to find this out, but the Ad Hoc Committee is nevertheless determined to finalise the oral submission process by next Thursday, the 25th March. So the three days it has already set aside for oral submissions will not be extended, irrespective of how many organisations might need to be squeezed in – or how many might find themselves left out if this arbitrary timetable does not accommodate them.
Both committees dealing with EWC bills need to draw back, recognise the deep flaws in their public consultation processes, and start afresh. Moreover, if the public is truly to have an opportunity to ‘know about the issues’, as the Constitution requires, both committees should ensure that the country’s most knowledgeable and experienced economists are commissioned to conduct a comprehensive socio-economic assessment (SEIAS) of the likely costs and consequences of EWC – especially in South Africa’s straitened economic circumstances.
Since 2015, government policy has required that a final SEIAS report be appended to every bill released for public comment. However, this has not been done for either the constitutional amendment bill or the Expropriation Bill.
A proper SEIAS report is particularly important at this juncture because of the unprecedented economic damage the lengthy Covid-19 lockdown has already caused. Some 1.4 million jobs were lost in 2020, taking the jobless total to well over 11 million. The economy contracted by 7%, its worst performance since the Second World War. With tax revenues crumbling as well, 67c in every rand collected is now going to interest payments and public service salaries. In addition, overall government debt could soon balloon to more than 100% of GDP.
Spending on education, healthcare, policing, social grants, and other essentials is already having to be cut in real terms. GDP per capita has been static or shrinking for close on a decade, leaving most people worse off with every passing year.
Enormous additional damage
In these already dire circumstances, South Africans need a full understanding of the enormous additional damage that EWC is sure to generate. As Zimbabwe and Venezuela have found, EWC will choke off direct investment, promote a flight of capital and skills, and worsen already sky-high unemployment rates. It could also provoke a banking crisis, an upsurge in inflation, and a sovereign debt default.
The Constitution requires that South Africans be given ‘a reasonable opportunity’ to ‘know about the issues’ raised by proposed bills and to ‘have an adequate say’ on whether they support these bills or not.
Yet both the portfolio committee and the Ad Hoc Committee have breached their constitutional obligations to facilitate public participation in the legislative process. Both must therefore start afresh by securing comprehensive SEIAS reports, accurately identifying the great costs of any EWC bill – and then giving the public a ‘meaningful’ opportunity to be heard in the making of any such law.
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